The Court of Appeal (CoA) heard a case regarding deprivation of citizenship based on grounds of fraud. It raises the issue of the test to be applied by the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) when hearing an appeal of a decision made pursuant to Section 40(3) of the British Nationality Act 1981 (the BNA 1981), to deprive a person of British citizenship.
Background:
Mr. Chaudhry was born in 1963 in Pakistan. He arrived in the UK in 1990 on a single visit entry clearance for a six-month period on a Pakistani passport. Once in the UK, Mr. Chaudhry claimed asylum using his name. That claim was unsuccessful, and an appeal was subsequently refused by the FTT.
On 12 August 2000, Mr. Chaudhry was granted indefinite leave to remain in the UK. He then applied for naturalisation as a British citizen on two further occasions. These applications were unsuccessful because he had not lived in the UK for the required 5-year period without being in breach of immigration law.
Mr. Chaudhry was naturalised as a British citizen on 9 December 2005 following a successful third application. This application was again made in his name. In that application, he ticked ‘No’ to the question but it later came to light that Mr. Chaudhry had fraudulently obtained a British passport using the details of a deceased child. The Home Office alleged that the photograph on the passport was of him and the handwriting was strikingly similar. That passport has been used to attempt to obtain a driving licence with Mr. Chaudhry’s address. When questioned by the HM Passport Office in July 2017, Mr. Chaudhry denied any involvement and said the passport belonged to his cousin.
The Secretary of State then made a decision, by letter dated 23 December 2021, to make an order to deprive Mr. Chaudhry of British citizenship on the basis that the ‘no’ answer resulted in Mr. Chaudhry obtaining British citizenship by false representation.
Mr. Chaudhry appealed to the FTT against the Secretary of State's decision to deprive him of British citizenship which found that the Home Office had not discharged its burden. The Secretary of State appealed to the Upper Tribunal (UT) which set aside the decision of the FTT. The UT later remade the decision ruling that the Secretary of State’s decision was lawful and there was no infringement of Mr. Chaudhry's rights under Article 8 of the ECHR.
Decision:
The CoA carefully analysed the wording of Section 40(3) of the BNA 1981 and the authorities such as the Supreme Court judgement in R (Begum) v Special Immigration Appeals Commission [2021] and the judgements of UT in Ciceri (deprivation of citizenship appeals: principles) v Secretary of State for the Home Department [2021]. Based on those analyses, Dingemans LJ held that “it is for the FTT to find, in the event of a dispute, as a fact whether there was a fraud, false representation or concealment of a material fact for the purposes of Section 40(3) of the BNA 1981” The decision of the Home Office on the causation which allegedly was “obtained by the impermissible means” must be reviewed on appeal by the FTT, in accordance with the principles referred to in paragraph 71 of Begum (No.1). The exercise of the Secretary of State's discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT and it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under Section 6 of the Human Rights Act (HRA) 1998. “Although due weight would need to be given to the findings, evaluations and policies of the Secretary of State, the decision was for the FTT.”
The appeal was remitted for a fresh hearing before a different judge.
Implications:
This case is now the leading authority on the test applied by the FTT when determining an appeal against a decision to deprive a person of their British citizenship on grounds of fraud. The CoA was very careful not to decide the merit of the case but only the procedural issues noting that the Secretary of State did not adequately challenge the FTT’s approach.
This case was heard by the same constitution of the Court as Daci v Secretary of State for the Home Department [2025] EWCA Civ 18 (Daci) and Kolicaj v Secretary of State for the Home Department [2025] EWCA Civ 10 (Kolicaj) which reached similar outcomes.
